A Treatise on the Law Lis Pendens: Or the Effect of Jurisdiction Upon Property Involved in Suit

A Treatise on the Law of Lis Pendens: Or the Effect of Jurisdiction Upon Property Involved in Suit
By John I. Bennett

2000/12 - Beard Books
1587980908 - Paperback - Reprint - 527 pp.
US$34.95

The first exhaustive treatment of lis pendens, a long established rule in the law of real property.

Publisher Comments

Category: Law

This title is part of the Treatises list.

Of Interest:

A Treatise on the Law and Practice of Voluntary Assignments for the Benefit of Creditors

A Treatise on the Law of Liens: Common Law, Statutory, Equitable, and Maritime

The rule of lis pendens arises when a suit concerning property commences, and provides that a purchaser may be bound by the judgment in the action without being made a party. Its object is to keep the subject matter within the court's jurisdiction and allows the court to give effect to its judgment. This detailed book, which is perhaps the first exhaustive treatment of the topic, covers: the history of the rule traced back to the early 1600s; the principle upon which it is based; the commencement, continuance and close of lis pendens; what property is subject to it; the necessary elements to create and make it valid; what constitutes a full prosecution of a case to maintain its validity; the general application of the rule to cases as they occur in practice, classified by subjects; the lis pendens statutes of the various States and the interpretation by their courts; and lis pendens as a defense.

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CHAPTER I. THE ORIGIN AND HISTORY OF THE DOCTRINE OF LIS PENDENS
Lord Bacon adopted the rule into chancery	57
Definition of terms	58
Early judicial history of lis pendens	59
Early decision of Lord Keeper Finch	60
Early decisions of Lords Nottingham and Camden	60
Early decisions of Lords King and Hardwicke	61
Other early cases	61
Supposed to be adopted by analogy	62
Derived from the Civil Law	62
Lis pendens in other countries	63
Conclusions upon the subject	64
CHAPTER II. THE PRINCIPLE UPON WHICH LIS PENDENS IS BASED.
The object of lis pendens	65
Importance of correctly understanding it	65
Sole object of the rule	66
Chancellor Kent's views	69
The rule should not be promotive of fraud	74
Why sometimes termed "Notice"	75
Constructive notice lis pendens	79
Notice of court proceedings presumed	80
John Newland's views	81
Caveat emptor as applied to lis pendens	82
Territorial scope of lis pendens	84
Extent of jurisdiction further considered	87
Conclusions	90
CHAPTER III. COMMENCEMENT, CONTINUATION AND CLOSE OF LIS PENDENS
Importance of the subject	91
Former practice as to filing bills	92
Statute upon the subject	94
The common law rule as to commencement of lis pendens	95
The rule lis pendens of ancient origin	96
Service before bill filed	96
Common law rule unsatisfactory	97
When amendments are filed	97
When no bill filed, no lis pendens	98
Analogous rule in attachment	99
Rule in ejectment	99
In bill filed against partnership	100
Service upon one member of the firm	100
Where service is accepted	101
Where cases are remanded	101
Where writ of error is sued out	101
Where sheriff is instructed	101
Where clerk is instructed	102
Where one of several defendants dies without service	102
Where sole defendant dies before service	103
Commencement of suit in Connecticut	103
Commencement of suit in Arkansas	104
Commencement of suit in Vermont	104
Commencement of suit in Mississippi	105
Commencement of lis pendens and suit in Missouri	105
Commencement of suit in West Virginia	105
Commencement of suit in Kentucky	106
When generally chancery suits commence	106
When service by publication	107
CHAPTER IV. COMMENCEMENT, CONTINUATION AND CLOSE OF LIS PENDENS, CONCLUDED
When service upon defendants differently made	108
Publication in attachment	109
When statute express	110
Where two writs issued	110
Where no writ issued	110
Issuance of writ will not relate back	111
Commencement of suit in England	111
When limitation barred	112
Where bill required to be filed before subpoena	112
Statute of Illinois	113
Statute of Texas	114
Simplification of rule	115
Reason for rule as above	115
No reason for postponement to service	116
Statute of Iowa	117
The court should exercise discretion	118
Question of fact sometimes involved	118
A writ of error a new lis pendens	118
Under lis pendens statutes	119
No lis pendens until bill filed	119
The common law authorities not uniform	119
Proof of publication	120
Continuous for some purposes until decree executed	120
Effect of orders of dismissal in chancery	121
Where order final, bar conclusive	122
When lis pendens ends	124
CHAPTER V. AS TO WHAT PROPERTY THE RULE LIS PENDENS APPLIES -- WHAT MAY BE RES LITIGIOSA
Whether applicable to personal property	126
English authorities	128
Authorities in this country	132
Authorities not all in harmony	139
Scope of lis pendens as to chattels	141
notice lis pendens as applied to slaves	144
Lis pendens will apply to steamboats	145
Does not apply to negotiable paper	146
Municipal bonds commercial paper	148
Does not apply in tax proceedings	150
Does not apply in condemnation proceedings	151
The right to an office subject to lis pendens	152
CHAPTER VI. WHAT ELEMENTS NECESSARY TO CONSTITUTE THE RES LITIGIOSA.
General statement---res litigiosa	153
Notice of facts averred in pleadings	153
As to the description of the property required	154
When description sufficient to put on inquiry	157
When description insufficient for lis pendens	159
Created by amendments	160
Property described in interrogatory	161
The claimant of the res must be impleaded	162
The court must have jurisdiction	163
The primary object of suit not material	163
Conclusions	165
CHAPTER VII. WHAT CONSTITUTES A "FULL PROSECUTION."
Rule requires full prosecution	167
A reasonable excuse for delay may be shown	168
Lord Nottingham's construction	168
Early decision of Lord Brougham	169
Delays in chancery proceedings	172
Presumption in favor of continuance	173
Otherwise a dangerous discretionary power	173
Loose language of some of the courts	174
Not a continuous prosecution	175
Benefits lost by laches---doctrine questioned	177
Estoppel as applied to lis pendens	178
Estoppel as applied to lis pendens further considered	180
Application of estoppel	181
Estoppel further considered	183
The true ground of decision	184
Farther application of the principle	184
Close and continuous prosecution	185
Mere lapse of time	185
The rule of the civil law	186
Analogy to period of limitation	187
Dismissal after purchase	187
CHAPTER VIII. APPLICATION OF THE RULE LIS PENDENS.
Preliminary statement	190
The importance of this branch of the subject	190
Binding character of lis pendens	191
Lis pendens a common law doctrine	191
Not peculiar to a court of chancery	192
Not favored by presumptions	194
Lis pendens not strictly a lien	195
The courts may prescribe a rule lis pendens	196
Essentials where lis pendens applies to personal property	198
Doctrine of lis pendens in Supreme Court of the U.S.	200
The court will not presume service to sustain lis pendens	201
Where the decree is merely for money	202
Does not apply in actions in personam	202
Lis pendens of amended bill	204
Lis pendens statutes not binding on Federal courts	205
Money in hands of the law	206
Notice to protect liability does not create lis pendens	207
Lis pendens legislation and judicial construction	208
Knowledge of entry of fiat equivalent to lis pendens	208
Amendatory bill filed without leave not lis pendens	209
Lis pendens does not affect with fraud	209
How lis pendens affects limitations	210
Lis pendens applies to femme coverts	213
Proceedings in State court by leave of Federal court in pending suit	213
Filing of supplemental bill does not discontinue the prior lis pendens	213
Lis pendens as an excuse for trustee	214
Where a lis pendens injunction not necessary	214
Where defendant disabled pendente lite	215
Lis pendens applies to the proceeding by scire facias to foreclose mortgage	215
When the court will not aid	216
Interest on balance pending injunction suit	217
The doctrine of tacking	217
When bill against pendente lite holder demurrable	218
Lis pendens of cross petition	219
Defective lis pendens validated	219
Lis pendens of bill to partition	220
Lis pendens of an appeal	221
In cases of dismissal	221
When note not set off in pending case	222
Bill against administrator	222
When decision of the Appellate Court final	223
Costs in pendente lite purchase	224
Assumption clause in conveyance	224
Where recovery of judgment and return of facia waived	224
Other general applications of lis pendens	225
Scope of lis pendens in garnishment	226
CHAPTER IX. DOCTRINE OF LIS PENDENS IN ITS APPLICATION TO PURCHASES
Preliminary statement	230
Formerly a purchase pendente lite champerty	231
Purchaser a legal title pendente lite	233
Conveyances pendente lite are now voidable merely	233
Sale on trust deed pendente lite	235
A purchaser pendente lite of trust property	236
Pendency of suit involving consideration of note, not notice	236
Decree dismissing bill where pendente lite purchaser	237
right of tenant taking lease pendente lite	238
Lease pendente lite from executor under power in a will	238
Collusive assignee pendente lite	239
When assignee in possession, not bound	240
When assignee in possession, bound	240
Condemnation proceedings not lis pendens	241
Ante item contract of purchase and payment before suit	241
Purchase upon execution pendente lite	242
Purchaser from trustee or agent bound to know the facts	243
Equitable rights of pendente lite purchaser protected	243
Conditional assignment pendente lite	244
Purchaser estopped by recitals	245
The lis pendens of a bill filed for the surrender of a mortgage	245
Bona fide purchasers---relation	245
Encumbrances pendente lite	246
Pendente lite judgments	247
Pendente lite purchasers at sheriff's sale	249
Purchaser under a decree a pendente lite purchaser	251
When proceedings are in real	251
When sale under a trust deed made pendente lite	252
Assignment of goods and chattels made pendente lite	253
CHAPTER X. DOCTRINE OF LIS PENDENS IN ITS APPLICATION TO PURCHASERS, CONTINUED
When title of grantor divested pendente lite	254
Endorsee of a sued note	255
Where note assigned pending suit	255
Release of mortgage pendente lite---effect of	255
When court record not notice--doctrine questioned	256
How far a judgment evidence against pendente lite purchaser	257
Lis pendens of bill to set aside sale	257
Purchaser after dismissal and before revival	258
Agent purchasing a tax title	258
Conveyance after decree and before writ of error	258
Conveyance after a writ of error	260
Lis pendens in ejectment	260
Lis pendens of bill as to an unrecorded mortgage	261
Lis pendens of bill to correct title	261
Lis pendens of bill to establish will	261
Pendente lite purchase by defendant from complainant	262
Assignment of decree between partners	262
A purchase pending foreclosure upon judgment not a prior lien, estopped	263
Lis pendens where judgment executed in chancery	263
Lis pendens of bill to subrogate	263
Mortgage pending second trial in ejectment	264
A purchaser upon a judgment prior to service	265
Notice presumed in pendente lite purchase	265
Statutes as to opening up judgments	266
When lis pendens in bill for alimony	267
Prior and junior lis pendens	268
Lis pendens no application without suit	269
Insufficient description for lis pendens	269
CHAPTER XI. PARTIES TO ACTIONS INVOLVING THE RULE LIS PENDENS.
Preliminary statement	271
Pendente lite purchaser not a necessary party	272
Pendente lite purchaser no right to prosecute an appeal	273
Whether assignee in bankruptcy a necessary party	274
Where assignee a necessary party	275
Equitable bona fide purchasers ante litem protected	276
Purchase through prior equity not barred	277
When treated as a party	280
Statutory right to be a party	280
Lis pendens where one partner only is served	281
Where purchasers pendente lite might appear	281
Change of trustee pending suit	282
Owner must be served in condemnation suit	283
Lis pendens does not apply to tax sales	283
Notice of lis pendens not necessary in tax cases	284
Lis pendens of bill to redeem from tax purchaser	286
Lis pendens in partition where complainant in bill conveys	287
Where one joint plaintiff sells to another pending suit	287
Lis pendens in cases against executors and administrators	287
Purchase from the court subject to lis pendens until purchase paid	288
where conveyances before suit not pendente lite	288
Ante litem equitable owners	290
Ante litem mortgages as well as grantees unaffected	292
Where a plaintiff sues for undivided interest	293
No lis pendens after final decree and before bill of review	294
Intruders pendente lite not entitled to be made parties	296
Amendments not required where a purchase pendente lite	296
when complainant's interest compulsorily assigned	297
Assignee may waive right	298
Where litigation collusive intervention admitted	298
Where Appellate Court remands with instructions	299
CHAPTER XII. THE APPLICATION OF LIS PENDENS TO ANTECEDENT LIENS.
General statement	302
Attorney's lien for compensation and costs	302
Particular or charging lien	303
This lien in the U.S.	305
Attorney general's lien	306
When attorney's lien attaches	307
Attorney's lien may be waived	308
Contract between attorney and client	309
Fees secured by special statute	309
Maintenance and champerty	310
Lis pendens of attorney's or solicitor's fees	311
Bill to enforce attorney's liens	313
Attorney's lien upon fund in court	314
Lis pendens of attachment proceedings	314
Actions in aid of suit	315
Lis pendens of bankruptcy proceedings	316
Actual notice equivalent to notice lis pendens	317
Lis pendens applied to mechanic's liens	319
Lis pendens applied to vendor's liens	320
Lis pendens of bill to enforce vendor's lien	321
Lis pendens in foreclosure cases	321
Lis pendens of creditor's bill	323
Pending bill for discovery lien on assets	324
When creditor's bill no lis pendens	325
Lis pendens of mortgage foreclosure	326
Creditor's bill against funds	326
Bill of discovery when judgment not a lien	326
When mortgage and notes are assigned pendente lite	327
When purchaser under mortgage pendente lite	327
When purchaser pending creditor's bill pendente lite	327
A purchaser on execution pending suit	329
Lis pendens of bill to set aside deed	329
Prior right to fund waived by negligence	329
Payment to credit of court pending suit	330
Pendency of partition cases does not withdraw lands from execution	330
When no lis pendens in favor of second mortgagee	330
Lis pendens in Tennessee where proceedings by attachment allowed in chancery	331
Estoppel and lis pendens	332
CHAPTER XIII. DOCTRINE OF LIS PENDENS APPLIED UNDER REGISTRY LAWS.
What recording laws are	333
Character of recording laws	334
Construction of recording acts	335
Lis pendens does not affect recording	338
Recording laws modify application of lis pendens	339
How lis pendens affected by the registry laws	340
A creditor with notice not protected	341
Holder of unrecorded deed, in category of pendente lite purchase	342
Unrecorded deed attacked by bill	344
The same subject further considered	345
Not an exception to the rule lis pendens	347
CHAPTER XIV. LIS PENDENS STATUTES.
English lis pendens statute	349
Lis pendens statute of New York	350
Wisconsin statute	352
California statute	354
Michigan statute	355
Minnesota statute	355
Indiana statute	357
Missouri statute	359
South Carolina statute	360
West Virginia statute	362
New Jersey statute	363
North Carolina statute	363
Dakota statute	366
Virginia statute	367
Application of general principles	368
Comparison of lis pendens statutes	369
CHAPTER XV. CONSTRUCTION OF LIS PENDENS STATUTES BY THE COURTS.
Lis pendens commences from time of filing or recording notice	371
Lis pendens in ejectment	373
The effect of actual notice	373
Where no notice of lis pendens is filed	374
In condemnation proceedings	374
Proceedings to enforce tax liens	375
The object of filing notice of lis pendens	375
Notice before bill filed	376
Erroneous description in notice	377
Surplusage in the notice	377
Notice broader than attachment	378
Actions not embraced in statute	378
Loss or destruction of the notice	379
When suit and cross-suit treated as one	379
No power to strike notice from files	380
As to unrecorded mortgages	380
Proof of filing notice, etc.	381
Proof and correction of record of notice	381
Amendment of bill and notice	382
What interest in real estate necessary	382
Notice of no effect upon independent holders	383
Statute of North Carolina construed	384
Void description in notice of lis pendens	384
when lis pendens not docketed	385
Effect of notice of lis pendens	385
CHAPTER XVI. LIS PENDENS AS A DEFENSE.
The plea in abatement prior action pending	387
Defense of prior action must be in limine litis	389
Where want of jurisdiction	390
Suits not for same cause	390
Defense of another action pending; what required	391
Suit pending in foreign State	391
State and Federal Courts	394
Decree in first suit as to second	395
Plea of pending writ of error	395
As a defense in criminal cases	396
Dismissed in Supreme Court	396
When Pendency of prior suit a bar	397
Two suits presumed vexations in some jurisdictions	397
When suit not deemed vexations in other jurisdictions	398
When former action not a bar	399
Practice in New York where another lis pendens	400
In forcible entry and detainer and distress for rent	400
In garnishee process	400
Actions different	401
When both suits should be tried	401
There must be service of summons	402
Lis pendens no bar to cumulative remedies of mortgage	402
Issue as to debt on plea	403
When service after suit commenced not a prior suit	403
Where one suit is brought for the use of another	403
Plea in mandamus	404
Where one suit against the officer and the other against the deputy, etc.,	405
Character of proof of lis pendens	405
CHAPTER XVII. LIS PENDENS AS A DEFENSE, CONTINUED
Pleading and practice in this defense	406
Defense seldom raised by demurrer	407
Of pleas generally	408
What allegations the pleas must contain	412
Suit not necessarily between same parties	413
Where same person sues in different right	414
Bills filed for self and other creditors	415
Plea of pendency of suit in foreign tribunal	415
Where prior suit in Federal and junior in State court in different States	417
Where prior suit in State and junior in Federal Court in different States	417
Where prior suit in Federal and junior in State Court in same States	419
Where prior suit in State and junior in Federal Court in same States	421
Where parties reversed, defense not allowable	421
When State and Federal Court have concurrent jurisdiction in rem	421
Where one suit at law and the other in equity	422
Both suits must pend in courts of superior jurisdiction	424
Can not be pleaded to a cross-suit	425
When relief sought in one suit broader than in the other	425
Where prior action determined pleadable in bar	427
When plea in bar may be interposed	427
Practice in chancery	430
Examination into the truth of the plea	431
When plea interposed in suit at law	431
Forms of pleas and replications	433-436
APPENDIX
The Rules or Ordinances adopted by Lord Bacon, in 1618, being 101 in number for the government of proceedings and the better administration of justice in the Court of Chancery. For a statement of the contents of these Rules or Ordinances, see pages 437 to 474.

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